This blog is for discussion of everything judicial: nominees, judges, the confirmation process, judicial philosophy, court decisions, constitutional issues, judicial activism. The views expressed here are those of the individual bloggers and do not necessarily represent the views of the Committee for Justice.

December 12, 2008

Race Case & Obama

Today the U.S. Supreme Court considers a petition to review the Second Circuit’s decision earlier this year in Ricci v. DeStefano, in which New Haven, Conn. firefighters – one Hispanic and 17 whites – sued the city after the promotions they earned were denied under pressure from the city’s African-American leaders. The Second Circuit affirmed the denial. In addition to its legal importance, this case stands out because of its implications for both President-elect Obama and Sonia Sotomayor, one of his most likely Supreme Court picks. Don’t miss an excellent piece on the case by National Journal columnist and former New York Times Supreme Court reporter Stuart Taylor (link below).

First, some details about the case. The plaintiffs are typified by Frank Ricci, who spent hundreds of hours and more than $1000 studying for the promotion exam and got a high score. But he didn’t get a promotion. New Haven threw out the test results because too few black firefighters scored high enough to earn a promotion. Never mind that the exams were expertly designed to eliminate the possibility of racial bias

The politics motivating New Haven’s decision highlights the ugliness of the racial spoils system behind many of the nation’s affirmative action programs. Taylor explains the Chicago-like politics behind this case:

“Politically powerful African-American leaders made it clear that if not enough blacks were eligible for promotion, then no whites should be promoted either. One was the Rev. Boise Kimber, who disrupted meetings of the city's civil service board and warned its members of a ‘political ramification’ if they certified the exam results. Kimber was a key vote-getter for [New Haven] Mayor DeStefano, who had made the minister chairman of New Haven's Board of Fire Commissioners despite his 1996 felony convictions.”

New Haven politics may soon impact national politics. Taylor explains:

“If the Court grants the petition, the now-obscure case will vault to the top of the nation's racial policy agenda, presenting a tough issue not only for the justices but also for President-elect Obama. He could come under great pressure to take a position for or against … what many voters – and, I would guess, five justices – would see as a raw racial quota.”

In his famous Philadelphia speech about race, Obama acknowledged the when "working and middle-class white Americans … hear that an African-American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed ... resentment builds over time." We believe this resentment is at risk of accelerating now that Obama’s election to the nation’s highest office has undercut the “uneven playing field” rationale for racial preferences. Taylor is concerned that

“based on Obama's record and the views of the civil-rights specialists on his transition team, there is every reason to worry that he will appoint civil-rights enforcers, judges, and justices bent on perpetuating the race-based discrimination against whites (and Asians) in many walks of life.”

Taylor concludes that it “would be most interesting to find out” if Obama “appreciate[s] the simple injustice of the New Haven firefighter case.” We go one step further: the American people deserve to know where Obama stands on this case, regardless of whether the Supreme Court decides to hear it. After all, it is Obama’s judicial and political appointees who will determine whether injustices of the kind seen in New Haven continue and, most importantly for Obama, whether the resentment of white and Asian Americans builds in the four years before the next presidential election.

SONIA SOTOMAYOR

In one sense, Ricci v. DeStefano is a typical case of judicial activism in which a panel of three liberal judges decided the case based on ideology rather than law. But in this case, the Second Circuit panel included the notorious judicial activist Sonia Sotomayor, who is at or near the top of virtually every list of potential Obama Supreme Court nominees.

As Taylor explains, Sotomayor and her two colleagues knew their decision lay on shaky legal grounds:

“[They] affirmed the dismissal, in a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both. … The three-judge panel initially deep-sixed the firefighters' appeal in a cursory, unpublished order that disclosed virtually nothing about the nature of the ideologically explosive case.”

By a narrow 7-6 vote, the full Second Circuit denied the firefighters’ request for a rehearing. In their denial, Sotomayor and several of her colleagues argued that New Haven’s decision was "facially race-neutral" because New Haven did not “confer any actual benefit on applicants on the basis of race.” As Taylor explains, the judges were making the laughable claim that the city’s action was non-discriminatory because “none of the low-scoring, ineligible African-American firefighters was promoted either.”

If Sotomayor is nominated to the Supreme Court, you can bet she’ll be asked about Ricci v. DeStefano, including her absurd definition of race-neutrality and her attempt to deny due process to the firefighters through a cursory order that is difficult to review.